Comments

1. #1 NewEnglandBob

   October 12, 2010

   Terrific (and correct) ruling. May the appeals process die off the vine and expire in 60 days.

2. #2 Vector Sigma

   October 12, 2010

   At a Tuesday briefing, White House press secretary Robert Gibbs told The Advocate he did not know whether the Administration would seek a stay of the ruling, nor did he know if any steps have been taken to bring the Pentagon into compliance with the injunction. “Obviously, there have been a number of [DADT] court cases that have ruled in favor of plaintiffs in this case and the president will continue to work as hard he can to change the law that he believes is fundamentally unfair,” Gibbs said.

   *sigh*

3. #3 Greg Laden

   October 12, 2010

   Well, there is this strange thing where the justice department has to argue in favor of standing law, and must act somewhat independently from the white house. Right?

4. #4 Vector Sigma

   October 12, 2010

   http://www.palmcenter.org/files/ExecutiveDiscretiononAppealMemo.pdf

   Exceptions to the Usual Duty to Defend

   In Defending Congress, Mr. Waxman describes two situations in which the duty to defend has not been absolute. First, there is executive discretion to decline to defend federal law when the president believes the law intrudes upon his express constitutional authority, such as the commander-in-chief authority. In those instances, DOJ may decline to defend a law that reaches too broadly and inappropriately restricts, for example, the president’s ability to direct military forces.
   The second circumstance in which DOJ has discretion to choose not to defend a federal law is the most important for purposes of this memo, although the first is complementary and supports the conclusion that discretion exists. Under the second exception, the executive branch has discretion to choose not to defend a federal law when that defense would involve asking the Supreme Court to disregard or alter one of its constitutional rulings. “Most commonly,” Mr. Waxman explained, “cases falling under this exception involve statutes whose constitutionality has been undermined by Supreme Court decisions rendered after the law’s enactment.”

   Executive Discretion to Decline Appeal in the Log Cabin Republicans Case

   Under the second exception, the constitutionality of “don’t ask, don’t tell” has been seriously undermined by the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, the Supreme Court held that the Constitution protects the liberty of all persons, straight and gay, to enter into private, intimate relationships without interference by the government, unless there is sufficient justification for government regulation. Lawrence was the basis for Judge Phillips’s ruling in Log Cabin Republicans. She held that, after Lawrence, the government could no longer rest on unsupported congressional and military opinion alone. Before the government could impose sweeping restrictions on personal intimacy and autonomy, it had to offer evidence that “don’t ask, don’t tell” significantly furthered the government’s interest in military readiness, and that the policy was necessary to further that interest. However, in Log Cabin Republicans the government was unable to produce any evidence beyond the opinions offered in support of the law back in 1993. In contrast, the plaintiffs’ evidence established that “don’t ask, don’t tell” was actually causing the military significant harm today.
   The usual reasons for DOJ’s customary practice of defending federal law against constitutional challenge fall away when an intervening decision of the Supreme Court, issued after the law was passed, calls the law’s constitutionality into serious question. In this situation, DOJ has discretion to make a constitutional judgment, and it can do so within the traditional structure of how these decisions to defend, or not to defend, are typically made. Now that the government has had full opportunity in Log Cabin Republicans to introduce evidence in justification of “don’t ask, don’t tell”—and has had none to offer beyond the law’s legislative history—DOJ is in a position to make a discretionary constitutional judgment that continued appeal is unwarranted.
   While the president has a constitutional obligation to “take care that the laws be faithfully executed” (Art. II, Sec. 3), he also takes an oath to “preserve, protect and defend the Constitution of the United States” (Art. II, Sec. 1). Both the president and Congress have an independent duty to ensure their actions conform to the Constitution.
   Although the second exception—an intervening Supreme Court decision that upsets the constitutional assumptions under which the law was enacted—is sufficient to justify a DOJ decision to not appeal in Log Cabin Republicans, the first exception supports the same use of discretion. The president has discretionary authority to conclude that the law intrudes too deeply on commander-in-chief authority because it can remove valuable service members from the chain of command, normally without warning and without needed replacements.

5. #5 gwen

   October 12, 2010

   Let it die… a long overdue, ignoble death.